State ex rel. Rodriguez v. Barker (Slip Opinion)State ex rel. Rodriguez v. Barker (Slip Opinion)
Per Curiam.
{¶ 1} Appellant, Jose Rodriguez, appeals the judgment of the Eighth District Court of Appeals denying his request for a writ of mandamus and granting the motion for summary judgment filed by appellee, Cuyahoga County Court of Common Pleas Judge Pamela Barker. We affirm.
{¶ 2} In September 2014, a jury found Rodriguez guilty of aggravated murder, murder, aggravated robbery, robbery, and two counts of felonious assault. A one-year firearm specification was attached to each count. After merging several counts for sentencing, Judge Barker sentenced Rodriguez to life imprisonment with the possibility of parole after 20 years for aggravated murder and four years for aggravated robbery, to be served concurrently. The court also sentenced Rodriquez to one year for a firearm specification, to be served consecutively to the other sentences. The court of appeals affirmed the convictions and sentence. State v. Rodriguez, 8th Dist. Cuyahoga No. 101971, 2015-Ohio-3875, ¶ 1.
{¶ 3} In August 2018, Rodriguez filed a motion to correct a “facially illegal sentence” in the trial court, claiming that Judge Barker‘s entry of conviction failed to dispose of the firearm specification for his aggravated-robbery conviction and failed to notify him of the imposition of postrelease control. In September 2018, Judge Barker granted the motion in part and entered a nunc pro tunc entry clarifying that the firearm specifications had been merged for sentencing. The trial court concluded that it was not imposing postrelease control.
{¶ 4} In October 2018, Rodriguez filed a complaint in mandamus in the court of appeals seeking to compel Judge Barker to vacate both the 2014 sentencing order and the 2018 nunc pro tunc entry and to resentence him. Rodriguez claimed that Judge Barker had failed to dispose of the aggravated-robbery firearm specification and had failed to impose a mandatory term of postrelease control. According to Rodriguez, these errors rendered the 2014 sentencing order void and therefore, the trial court lacked jurisdiction to enter the 2018 nunc pro tunc entry. Rodriguez argued that he had no adequate remedy at law, because the void sentences were not final, appealable orders.
{¶ 5} Judge Barker filed a motion for summary judgment on November 14, 2018, in which she claimed that she had properly merged the firearm specifications
{¶ 6} The court of appeals then granted Judge Barker‘s motion for summary judgment and denied the writ. The court of appeals held that the judge‘s failure to impose postrelease control did not render the entire sentence void and that Rodriguez‘s claims regarding postrelease control were rendered moot after the trial court corrected the oversight at the November 2018 hearing. The court of appeals also concluded that the trial court‘s failure to address the aggravated-robbery firearm specification was a sentencing error that could be corrected by way of direct appeal. And because Rodriguez could have challenged that error on direct appeal, his claim was barred by res judicata. Finally, the court of appeals held that the trial court was correct to issue a nunc pro tunc entry to clarify that the court had merged the firearm specifications. Rodriguez appealed.
Analysis
{¶ 7} “Summary judgment is appropriate when an examination of all relevant materials filed in the action reveals that ‘there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting
First and second propositions of law
{¶ 9} Rodriguez‘s first two propositions of law are related and will be addressed together. Rodriguez contends that because the trial court failed to dispose of the firearm specification attached to the aggravated-robbery count, his sentence was void and thus the sentencing error could not be corrected by a nunc pro tunc entry. However, the trial court was vested with subject-matter jurisdiction over Rodriguez‘s criminal case.
{¶ 10} Rodriguez claims that he could not have appealed the 2014 sentencing entry because it was not a final, appealable order pursuant to
{¶ 11} Rodriguez also contends that because the 2014 sentence was void, the trial court lacked jurisdiction to issue the 2018 nunc pro tunc entry. But as noted above, the 2014 order was not void. Therefore, the trial court had continuing jurisdiction to issue an order “to reflect what the court actually decided.” State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 13. And Rodriguez does not claim that the nunc pro tunc entry failed to reflect “what the court actually decided.”
{¶ 12} For the foregoing reasons, Rodriguez‘s first and second propositions of law lack merit.
Third proposition of law
{¶ 13} In his third proposition of law, Rodriguez claims that if even one part of a sentencing order is void, it is as if there had been no judgment, and therefore res judicata does not bar the review of the conviction and the sentence.
{¶ 14} Rodriguez is correct that generally, if a sentence is void, the “sentence may be reviewed at any time, on direct appeal or by collateral attack.” Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 30. But as explained above, Rodriguez‘s 2014 sentence was not void. And because Rodriguez could have raised the argument regarding the trial court‘s failure to address one of the firearm specifications in his direct appeal, the court of appeals properly held that this claim was barred by res judicata. See State ex rel. Hunter v. Binette, 154 Ohio St.3d 508, 2018-Ohio-2681, 116 N.E.3d 121, ¶ 13 (when a judgment was not
{¶ 15} Contrary to Rodriguez‘s contention, the failure to include the required postrelease-control notification does not affect the finality of the order. As we held in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 39:
The fact that [a] sentence was illegal [because it did not include mandatory postrelease control] does not deprive the appellate court of jurisdiction to consider and correct the error. In fact,
R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court to modify or vacate any sentence that is “contrary to law.” Clearly, no such authority could exist if an unlawful sentence rendered a judgment nonfinal and unappealable.
See also State ex rel. Ward v. Reed, 141 Ohio St.3d 50, 2014-Ohio-4512, 21 N.E.3d 303, ¶ 12 (affirming dismissal of a mandamus action because relator had an adequate remedy at law by way of appeal to challenge a court‘s entry correcting errors in his sentence).
{¶ 16} But Rodriguez contends that Fischer violates the provisions in the
{¶ 17} Rodriguez‘s third proposition of law lacks merit.
O‘Connor, C.J., and Kennedy, French, Fischer, DeWine, Donnelly, and Stewart, JJ., concur.